Gauhati High Court

Page No.# 1/ vs The State Of Assam And 2 Ors on 13 February, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

                                                              Page No.# 1/11

GAHC010195032022




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                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : Crl.Pet./975/2022

         SHANKAR PRASAD JAIN AND 3 ORS
         SON OF SRI OM PRAKASH JAIN,
         ADDRESS- GROUND FLOOR, PARMESWARI BUILDING, CHATRIBARI,
         GUWAHATI-01, DIST. KAMRUP (M), ASSAM

         2: SRI NATWAR NAGORI
          S/O LATE GOVERDHAN NAGORI

         ADDRESS- THIRD FLOOR

          PARMESWARI BUILDING
          CHATRIBARI
          GUWAHATI-01
          DIST. KAMRUP (M)
          ASSAM

         3: SRI KAILASH PRASAD SARDA
          S/O LATE PARMESWAR LAL SARDA

         ADDRESS- SECOND FLOOR
         PARMESWARI BUILDING
         CHATRIBARI
         GUWAHATI-01

         DIST. KAMRUP (M)
         ASSAM

         4: SRI OM PRAKASH CHANDAK
          S/O LATE BANSHI LAL CHANDAK ADDRESS- GROUND FLOOR
          PARMESWARI BUILDING
          CHATRIBARI
          GUWAHATI-01
          DIST. KAMRUP (M)
         ASSA
                                                                       Page No.# 2/11


            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REP. HEREIN BY THE LD. PP, ASSAM

            2:M/S HIMATSINGKA MOTOR WORKS LIMITED
            A LIMITED COMPANY HAVING ITS REGISTERED OFFICE ADDRESS AT-
            A.T. ROAD

             PALTAN BAZAR
             P.S.PALTAN BAZAR

            GUWAHATI- 781001
            DIST. KAMRUP (M)
            ASSAM

            3:SRI RAJESH KUMAR HIMATSINGKA
             S/O LATE SANTOSH KUMAR HIMATSINGKA
            ADDRESS- KHARGHULI
             P.S. LATASIL
             GUWAHATI- 01
             DIST. KAMRUP (M)
            ASSA

Advocate for the Petitioner   : MR. S CHAMARIA, MR M M ZAMAN,MR. D DAS,MR A N
SARMAH

Advocate for the Respondent : PP, ASSAM,

BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI

JUDGMENT & ORDER (CAV)

Date : 13-02-2025

Heard Mr. S. Chamaria, learned counsel for the petitioners. Also heard Mr. R.R. Kaushik, learned Addl. P.P for the respondents.

2. By filing this application u/s 482 of the Code of Criminal Procedure, 1973, the petitioners have prayed for setting aside the impugned FIR dated Page No.# 3/11

06.03.2019 vide Paltanbazar P.S Case No.770/2019 u/s 406/420/294/506 of IPC.

3. The brief facts of the case is that an FIR has been lodged dated 06.03.2019, by the informant stating inter alia that he is the absolute owner and possessor of a RCC building known as "Parmeswari Building" standing over a plot of land bearing Dag No.1381, 1382 (Old) 2051, 2052 (New) of K.P. Patta No.827 (Old) 1102(New) of Revenue Village - Sahar Guwahati Part II in the district of Kamrup (M).

4. On 17.10.2017, the informant had executed a sale agreement with the petitioners to sell his aforesaid property to them. As per the agreement, the petitioners assured to pay Rs.6,00,000,00/- (Rupees Six Crores only) within a period of 30 days from the date of getting 'No Objection Certificate' from the office of the Deputy Commissioner or at the time of execution of final sale deed. It is alleged in the FIR that though 'No Objection Certificate' has been obtained, the petitioners had not paid the aforesaid amount as per agreement. It is further alleged that though the respondent no.3 on several occasions approached before the petitioners but they misbehaved him and threatened him that they would not pay a single amount and started avoiding his phone call. On 12.02.2019, when the informant went to the office of the petitioners, they assaulted him by using filthy languages and drove him out from their office.

5. Accordingly, on receipt of the FIR, a case has been registered vide Paltanbazar P.S Case No.770/2019.

6. Learned counsel for the petitioners has argued that the petitioners are no way connected with the alleged offences and the allegations levelled in the impugned FIR are false and far from truth. It is further submitted that the Page No.# 4/11

aforesaid FIR has been lodged only to harass the petitioners. There is no material evidences available to prove the fact that the petitioners either have any liability to be discharged or the petitioners have committed any misappropriation of such huge amount for their personal gain. Therefore, the impugned FIR dated 06.03.2019, filed by the respondent no.3 is bad in law and is liable to be quashed.

7. It is also the submission of learned counsel for the petitioners that the petitioners duly discharged their liability and as such, the sale deeds were duly executed in accordance with law and also for this purpose, the respondent no.2 and 3 have given their full support and consent for such execution of deed of sale in favour of the present petitioners. Therefore, it is quite evident that there is no scope left afterwards to raise a liability of Rs.6,00,000,00/- (Rupees Six Crores only) from the present petitioners. Hence, the impugned FIR dated 06.03.2019 vide Paltanbazar P.S Case No.770/2019 is liable to be quashed.

8. Learned counsel for the petitioners further contended that the contents of the impugned FIR dated 06.03.2019 in question, clearly reveals that the alleged liability, if so, liable to be paid on account of breach of contract, the proper forum is civil court for raising such issues. It is quite evident that the impugned FIR has been lodged to recover the amount from the petitioners and the criminal court has no jurisdiction to entertain such liability.

9. According to the learned counsel for the petitioners, the Hon'ble Apex Court at different occasions reiterated that the civil liability should not be converted purportedly in a way of criminal liability and on such attempt, the innocent persons should not be harassed in the name of fake FIR. Accordingly, learned counsel for the petitioners prays to quash the alleged FIR vide Page No.# 5/11

Paltanbazar P.S Case No.770/2019.

10. Learned counsel for the petitioners further submitted that parties have entered into an agreement to sell that does not amount to an offence u/s 420 IPC. Neither the FIR lodged by the informant, reveals even a prima-facie case of a criminal offence being committed by the petitioners u/s 420/406/34 IPC and if the parties entered into an agreement to sell which is purely a commercial transaction and if there is a breach of the terms of an agreement to sell, the party to the agreement in consequence was justified to forfeit the earnest money, it is simply a civil dispute. As there was demand to refund a forfeited amount failing which FIR was registered to set the criminal law into motion obviously to settle the scores giving the colour of criminal proceedings which is impermissible u/s 482 Cr.PC.

11. In response, learned Addl. P.P has argued that it is not reflected in the FIR that though agreement was executed between the parties but sale deed was duly executed in accordance with law on payment of the settled amount between the parties. The scope u/s 482 Cr.PC is very limited. The issue may be raised before the trial court during trial. As such, learned Addl. P.P has opposed in quashing of FIR vide Paltanbazar P.S Case No.770/2019.

12. Having heard the learned counsel for the parties, and on perusal of the documents available on the record, the question to be decided whether the matter in dispute relates to the question regarding civil dispute between the parties.

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13. It being a settled principle of law that to exercise powers u/s 482 of Cr.PC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage is not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same.

14. The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed in exercise of the extraordinary powers of the High Court u/s 482 of Cr.PC. In this backdrop, the scope and ambit of the inherent jurisdiction of the High Court u/s 482 of Cr.PC has been examined in the judgment of Hon'ble Supreme Court in State of Haryana vs. Bhajan Lal and others, reported in (1992) Supp.

(1) SCC 335. The relevant Para is mentioned here under-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers u/s 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent the abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give exhaustive list of myriad kinds of cases wherein such power should be exercised.

1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out Page No.# 7/11

a case against the accused.

2) Where the allegations made in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by 17 police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due private and personal grudge."

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15. It has been further elucidated recently by the Hon'ble Supreme Court in Arnab Manoranjan Goswami Vs. State of Maharastra and Others reported in 2020 SCC Online (SC) 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 Cr.PC has been analysed at great length which reads as follows -

"It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/ charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.

In the matter under consideration, if we try to analyse the guidelines of which a reference has been made, can it be said that the allegations in the complaint/FIR/ charge-sheet do not make out a case against the 2 nd respondent or do they disclose the ingredients of an offence alleged against the 2 nd respondent or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the 2 nd respondent."

16. In the case in hand, the FIR as stated above, does, however, lend credence to the questions posed. It is settled that one is not supposed to dilate on this score, or intend to present that the allegations in the FIR will have to be accepted on the face of it and the truth or falsity of which would not be gone into by this Court at this stage. Whether the allegations in the FIR were true is to be decided on the basis of the evidence led at the stage of trial and the observations on this score in the case of Nagpur Steel & Alloys Pvt. Ltd. Vs. P. Radhakrishna & Others reported in 1997 SCC in (Cri) 1073 has been laid as follows -

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"3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously."

17. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/ charge-sheet in exercise of its inherent jurisdiction.

18. In the instant case, on a careful reading of the FIR, it cannot be said that the FIR does not disclose the commission of an offence. The ingredients of the offences under Section 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the FIR. I would like to add that whether the allegations in the FIR are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there Page No.# 10/11

is a remedy provided for breach of contract that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 Cr.PC.

19. After hearing learned counsel for the parties, this Court is satisfied that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The facts narrated in the present FIR indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. Similar observations have been made by the Hon'ble Apex Court in Trisuns Chemical Industry vs. Rajesh Agarwal and Ors. reported in (1999) 8 SCC 686 which is reproduced as follows -

"9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335)'' Page No.# 11/11

20. In view of the law laid down by the Hon'ble Apex Court as indicated above, and considering the background of the case, this Court is not inclined to interfere in further investigation of the case. Hence, the criminal petition is dismissed. Accordingly, stay granted earlier by this Court is hereby vacated. The investigation of the case will proceed in accordance with law.